New date for Microsoft trial?

A further delay in the antitrust suit against the giant is unlikely, observers say.

January 2, 20024:43 PM PST

Attorneys on both sides of the Microsoft antitrust case are gearing up for D-Day next Monday, the scheduled start of the trial in the historic action filed by the Justice Department and 20 states.

A federal judge on Friday delayed the trial, originally set to begin this Thursday, by four days. The software giant has requested an additional two-week delay, but it appears unlikely the motion will be granted.

At a pretrial hearing Friday
in Washington, U.S. District Judge Thomas Penfield Jackson also ordered the company to give government investigators access to its sales and pricing databases. Both sides also finalized the list of witnesses who will testify at the trial, which is expected to last between four and eight weeks.

The database issue, which focuses on Microsoft's revenues from its original equipment manufacturers (OEMs), underscores the contentious debate between both sides.

Microsoft filed a motion Friday seeking an additional 14-day delay to prepare for what it said are new allegations in the trial. The trial was slated to begin October 15, but both parties agreed to postpone opening statements pending Judge Jackson's approval.

Microsoft trial witness table

Government witnesses

James Barksdale
chief executive, Netscape Communications

David Colburn
senior vice president of business affairs, America Online

John Rose
senior vice president and group general manager for enterprise computing,
Compaq Computer

Michael Devlin
Rational Software

Earlier, both parties each substituted two new witnesses to their list of 12.
The new government witnesses include James Gosling, vice president and
fellow at Sun Microsystems and one of the
founders of the Java programming language. Sun and Microsoft agreed to
collaborate on the language, but the two companies have since squabbled
over Microsoft's implementation of the code.

Government lawyers also plan to call on Apple Computer senior vice president of
software engineering Avadis Tevanian.

Those additions, Microsoft said, indicate the
government is plotting a different course with its strategy to prove the
giant took calculated steps to maintain its monopoly for desktop operating
systems.

Microsoft spokesman Mark Murray said the government is expecting the
company to "fly blind" and additional time is necessary to conduct discovery.

"Microsoft does need to obtain documents from Apple and Sun to be able to
depose and later cross-examine Tevanian and Gosling at trial," the
company's lawyers wrote in a motion filed Friday.

"While Microsoft has made every effort to complete the discovery it needs
within the short time provided, the government's last-minute maneuvering
has left Microsoft with insufficient time to prepare for trial," Microsoft
lawyers wrote.

Earlier on Friday, a Justice spokeswoman said: "We're ready to go."

Microsoft also had added two new witnesses Thursday, but Friday the company
replaced them with Bob Muglia, the firm's senior vice president for
applications and tools, and Eric Engstrom, general manager for multimedia
at the company. Judge Jackson still must approve the substitutions but the
government does not appear to object to the changes.

Microsoft's chief negotiator in the Java contract with Sun, Muglia will
refute Java father Gosling's testimony. Meanwhile, Engstrom will be on hand
to counter Tevanian's testimony, which is expected to cover the battle
between the companies over Apple's QuickTime and similar Microsoft
multimedia software.

"Two new issues and allegations were brought into this case with their new
witnesses and we want to be able to refute those new allegations," Cullinan
said. "This only reinforces our belief that the government continues to try
to change the lawsuit that it filed back in May."

Microsoft's legal foes deny that.

"These are not new charges," said Marc Wurzel, spokesman for the New York
Attorney General's office, the lead state in the lawsuit. "[Our new
witnesses] will shed more light on the
improper conduct that we allege in the lawsuit."

The Justice Department (DOJ) and 20 states
filed a major lawsuit against Microsoft alleging the company has illegally
maintained leadership in the OS
market and that it is leveraging its Windows platform to gain monopolies in
other markets, including Internet software.

Judge Jackson also ordered the software giant to turn over additional
software tools that will allow government lawyers to extract information
from Microsoft's sales and pricing databases. Cullinan said representatives
for the plaintiffs will go to Microsoft's Redmond, Washington-based campus
to access the databases in their native environment, using the same
graphical user interfaces company employees use.